AMERICAN INDIAN LAW
Professor Robert Anderson- University of Washington School of Law
Spring 2012
Anderson et. al, American Indian Law: Cases and Commentary (2d Ed 2010)
Basic Principles
Indian tribes are governments with inherent powers
U.S. Constitution itself does not limit tribal powers – only federal and state powers
Constitution gives Congress full control over Indian affairs – including authority to limit tribal powers. Art. 1. §8, Clause 3- Indian Commerce Clause
Treat rights are property rights
State law is generally preempted within Indian country
Congress has power to change this under CC.
Federal government has a trust responsibility to tribes
Federal Register list of recognized Indian tribes 75 Fed. Reg. 60810
Tribal powers exercised within “Indian country”. 18 U.S.C. 1151 (definition includes Indian reservations, allotments, and dependent Indian communities)
Colonial Period
Treaties of Peace
Shifting alliances among tribes and European Nations
Onset of disease and population pressures – shift in balance of military power
Proclamation of 1763 precludes land transfers from tribes w/o Crown permission
Revolutionary War
The Federal-Tribal-State Relationship
Trade and Intercourse Act of 1790 (pg. 44-46) – essentially codified the Doctrine of Discovery, tribes couldn’t sell land. Required license from U.S. necessary to trade with the tribes.
Indian Country Crimes Act 1816 (interracial crimes made Federal offenses)
Johnson v. McIntosh (1823)- pre-revolutionary transactions in question. T incapable of conveying land, even before TIA were passed. Discovery/conquest gives FG exclusive title subject to the Native American’s right to occupancy. “Right to occupancy” is the right to exclusively use and occupy the land until the U.S. or its designee decides to extinguish the right. T that occupied/used lands to exclusions of others (besides temporary incursions) have rt of occupancy- aboriginal title.
Cherokee Nation v. Georgia (1831) (Pg 54)- two justices say that tribes are states, but not foreign states- are DDN- wards of U.S. Tribes bring action in F Ct seeking injunction to keep Georgia from annihilating Cherokee’s and their land. Georgia argued their state law applies and Federal laws provide no protection. Tribes argue they are protected by treaties and have a right to be secure from state law. Article II of Constitution –judicial power shall extend to all cases arising under Federal laws and to controversies amongst citizens and foreign states. Original jurisdiction. Majority holds: unquestionable right to the lands they occupy. Textual argument is that they are domestic dependent nations, not foreign nations. One of the three sovereigns under the constitution. Found state law has no power, field preemption under Commerce Clause. U.S. Constitution: “that Congress Shall have Power To…regulate Commerce with foreign nations, among the several States, and with the Indian Tribes” Art. 1, Section 8, cl. 3
Worcester v. Georgia (1832) (Pg 63)- Laws of state have NO force w/i Cherokee res. Was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Indians from being present on Indian lands without a license from the state was unconstitutional. The opinion is most famous for its dicta, which lay out the relationship between tribes and the state and federal governments, building the foundations of the doctrine of tribal sovereignty in the United States. Also found Georgia had no power under pg. 47- Treaty of Hopewell: agree to be under protection of U.S. and no other sovereign (including state of Georgia). Art. III – “The said Indians for themselves and their respective tribes and towns do acknowledge all the Cherokees to be under the protection of the United States of America, and no other sovereign whosoever.” Art. IX – “U.S. has sole and exclusive right of regulating the trade with the Indians and managing all their affairs in such manner as they think proper”. pg. 70 – details trust relationship between U.S. and tribes – sovereign nation within a sovereign, not just a ward/parent relationship. Statutes should be construed in light of this notion of protecting the sovereignty of the tribe. WORCESTER RULE: No state jurisdiction unless authorized by Congress.
Treaty Era 1776-1871
Vast land cessions to the United States in exchange for guarantees of “reservations” and other rights – such as off-reservation fishing rights
The Trade and Intercourse Era: 1785-1817
· Treaty Making and Intercourse Acts
· US implemented Indian policy through two main vehicles:
(1) Treaties with the Indian nations
(2) Trade and Intercourse Acts to facilitate treaties
· 1790 – Trade and Intercourse Acts
Preservation of Peace
Penalties against NI who violate Indian rights
Tribes could not sell land unless approved by the US
Codified notion of discovery
· 1791 – First Act
No person shall carry on trade with Indian tribes without a license, or else forfeit all merchandise offered for sale
No sale of lands made by the Indians is valid without the authority of the US
Anyone who commits a crime on Indian land is punishable by the same laws as if the offense was committed against a white person on US soil
Indian Country defined as places they have the right to occupancy
Areas where aboriginal title has not been extinguished
· Treaty of Hopewell (1785) – US gives peace to Cherokees on the following conditions:
Mutual restoration of prisoners
Cherokees are under the protection of the US and no other power
Boundary allotted to Cherokees for hunting grounds
Any US citizen who settled on Indian lands and will not remove from the lands within 6 months may be punished by the Indians
Any Indian who commits a capital crime against a US citizen shall be delivered to US authority and punished accordingly, but not more so than if done by US citizen
Any US citizen who commits a capital crime against an Indian shall be punished by the US in presence of the Cherokees
US has sole right to regulate trade with Indians
All US traders have the right to trade with Indians
Treaty making ends in 1871
25 U.S.C. 71- U.S. cannot make treaties w/ tribes. Reservations established after passage done so by § or executive order. Existing treaties preserved.
Federal incursions into intra-tribal matters
Ex parte Crow Dog, (Pg 92-95) 109 U.S. 556 (1883), was a case in which the Supreme Court of the United States held that a federal court did not have jurisdiction to try Crow Dog, a Native American (Indian) who killed another Indian on the reserv
The decision marked a departure from the holdings of Cherokee and Worcester which had given greater respect to the autonomy of Native American tribes. Also rebutted Cherokee’s “ward/trustee” arg that the trust relationship is the source of federal power. Good faith exercise of plenary power not subject to judicial review.
Ceded landsàreserved landsàallotment eraàwho has jurisdiction??
U.S. v. Winans (1905) (Pg 122)
Equal Footing Doctrine (Submerged Lands)
State argued that the state owned these submerged lands by virtue of the equal footing doctrine, however , 1) US reserved the easement for the Indians to use the land for fishing, and 2) this is not inconsistent with the state’s ownership with the submerged lands
Implied reserved water right associated with reservation that was created when reservation created in 1865. Where treaty reserves rt to fish at “all usual and accustomed places”, state may not preclude access to those places. Treaty rts cannot be defeated by state’s subsequent rts.
Still consistent with Lone Wolf v. Hitchcock. This is about state power, not Congressional power. Congress possesses the rt to derogate those rts, but not the states.
Winters v. U.S. (1908) (Pg 125)– implied reserved water right even for sold Indian lands. Treaty made no mention at all of rt to use water, but T would have understood this to include rt to water. Water rt comes into existence at time of treaty. Claim may come first in time over others.
Navigability for Title:
Conditions at time of statehood.
May include waters for log floating.
May include rivres frozen 7 mos of the year.
Great Salt Lake navigable; sheep brought back and forth to Island
Must be navigable with technology at time of title
Citizenship:
Even though born in U.S., born under separate sovereign (tribe) and not citizen under 14th Amendment
1924 – General Statute conferring citizenship upon Native Americans. 8 U.S.C. §1401(b). By reason of 14A, grant of federal citizenship had add’l effect of making I state citizens.
Prior to that, many of the allotment statutes gave citizenship upon receipt of a fee patent
Long –Standing Rules of Treaty Interpretation:
Ambiguities should be interpreted in the Indians’ favor
Should be interpreted as the Indians would have understood them
Treaties are not grants of rts to Indians, but reservations of rts not surrendered. (Winans)
Land not being taxable or able to be taken away is good for tribes but also bad because they can’t use the land as collateral to get loans for economic activity. Great Wolf Lodge litigation over county taxes discussed. Sale of allotments created multiple owners on same tracts of land.
